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Ballot review could take weeks

Judge Denise Reilly asks a question about initials on a ballot during Senate election trial testimony Wednesday by election official Kevin Corbid of Washington County. Pool photo by David Joles, Star Tribune

ST. PAUL - Note to Minnesotans: Get comfortable because the U.S. Senate election trial is going to take a while.

There is no trial timeline, but a brief courtroom comment Wednesday by one of three judges hearing the election lawsuit confirmed that the case is far from over.

Judge Denise Reilly of Hennepin County said the court will review and count absentee ballots that the judges decide were wrongly excluded from the Nov. 4 election and the recount.

"The panel is going to take its own view of each of these ballots and make sure that every legally cast and wrongfully rejected ballot is opened and counted," Reilly told attorneys for Norm Coleman and Al Franken.

Reilly's statement was the first indication after eight trial days that the judges will count ballots they believe should be included in the tally, after inspecting the sealed ballot envelopes. Reilly is joined on the panel by Judge Kurt Marben of Pennington County and Judge Elizabeth Hayden of Stearns County.

The judges are deciding Coleman's lawsuit that challenges Franken's 225-vote victory. State law says absentee ballots can be rejected if they do not meet certain criteria, but Coleman claims as many as a few thousand ballots were wrongly rejected.

"They're going to enfranchise every Minnesotan whose vote ought to be allowed to count," Coleman attorney Ben Ginsberg said of the judges.

The judicial review will take time. Coleman's campaign, which seeks to have up to 4,800 rejected absentee ballots considered for possible counting, on Wednesday introduced as evidence more than 100 Washington County rejected absentee ballots, asking county official Kevin Corbid to explain what happened with each ballot.

A similar process could be used for each of the remaining 86 Minnesota counties, Ginsberg said.

"We won't be done next week," he said. "However long they want it to (last), we're for it."

Franken's team asked the court Wednesday to consider changing what absentee ballots will be part of the trial.

An outside observer predicted the absentee ballot issue and other issues at play in the case mean the trial will last at least another month.

"I am not anticipating this being resolved before March 1," Hamline University professor and election expert David Schultz said recently.

During a break in his testimony, Corbid said officials from his county and others around the state are ready to respond if judges ask to count more ballots.

"If the court decides that we did something improperly or they're going to count something even though the law's a little gray or they're going to make an exception, that's fine with me," Corbid said. "Whatever they decide to count, we'll provide them the ballots, we'll give them the material they need.

"We'll be cooperative in that effort, there's not doubt about that," he added.

During a few hours of testimony, Coleman attorney Joe Friedberg asked Corbid to describe how certain rejected absentee ballots from Washington County were handled in the election and recount.

Under cross examination, Franken attorney David Lillehaug wanted Corbid to explain why there were differences in the vote totals recorded on election day and during the recount in certain Washington County precincts, including in Woodbury, Grant and Oak Park Heights.

Marc Elias, another Franken attorney, said those are examples of incidents where ballots may have been lost.

Ginsberg, Coleman's attorney, said Franken is attempting to prevent some votes from being counted.